Category Archives: Termination of Transfers

The Termination Right and Authors’ Human Rights

Posted October 18, 2017

We are delighted to feature the following guest post by Professor Graeme Austin of Victoria University of Wellington (NZ) and Melbourne University (Australia).

Headshot of Graeme AustinIf people think of “international copyright law” at all, they probably think of the IP chapters in international trade agreements.  These agreements are mostly about economic links between groups of countries. Protecting copyrights, along with other kinds of IP, is the quid pro quo for access to commodity markets and markets for services.  The Agreement on Trade Related Aspects of Intellectual Property (TRIPS) brought copyright squarely into the world trade regime with the requirement that World Trade Organization members must protect copyrights up to certain minimum standards.

But there’s a whole other side to the rights of authors that many people don’t know about: international human rights law.  In 1948, the Universal Declaration of Human Rights (UDHR) announced: “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” A similar guarantee appears in the American Declaration on the Rights and Duties of Man (1948). Authors’ rights are also included in the International Covenant on Economic, Social and Cultural Rights, which came into force in 1976.  “Material interests” means financial support: the ability to earn an income from creative work.  “Moral interests” spring from the emotional and spiritual connections between creators and their works. They can be given force through legal prohibitions against subjecting works to certain kinds of derogatory treatment or prohibitions against failing to name the author of a work when it is released to the public.

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Why is an Author Able to Terminate a Transfer of Copyright?

Posted October 17, 2017

We are grateful to Professor Lydia Pallas Loren of Lewis & Clark School of Law for contributing the following guest post.

Headshot of Lydia LorenThe U.S. Copyright Act is clear: Authors have a right to terminate a transfer of their copyrights 35 years after they have signed on the dotted line.* That right to terminate cannot be waived, nor is there any way to “contract around” it. It does not matter if the contract purports to assign the copyright for “the entire term of copyright” or “in perpetuity” or if the contract prohibits any attempts at termination. Why did Congress include this significant, unwaivable right in its comprehensive revision of the Copyright Act?

Some assert that the reason for the termination rights is paternalistic—it seeks to protect authors who, in general, lack business acumen. By providing authors with an ability to recapture their copyrights, the law gives authors, who need government protection, a second bite of the apple. But, if authors on a whole lack business acumen, what makes us think the author would be any better at obtaining a deal on more favorable terms 35 years later?

In fact, the evidence points in another direction to explain Congress’ decision. Congress recognized that often transfers of copyright are entered into before the authors have solid information from which to assess the value of the copyrighted work. This puts the author in what Congress called an “unequal bargaining position.” After 35 years has passed, they should have more information about the work’s value, and that would be an appropriate time to allow the author to enter into a new bargain, based on a better assessment of the value of the work. In other words, Congress viewed the termination right as a way for authors to obtain compensation at a level that more accurately reflects the true value of their works.

For the author who sold their copyright for a pittance and the work turned out to be a blockbuster, termination can play out the way Congress thought it might. But the termination right is not just about money. For an author who thinks her publisher has not done enough to market the book and that explains its lackluster sales, terminating that transfer allows the author to seek out a new publisher. For the author whose work has failed to gain a commercially viable audience, but whose work has noncommercial value, such as for research, terminating the transfer allows the author to seek out a new “home” for that copyrighted work. Once the copyright has been recaptured by the author, that new home might be with a new publisher, or it might in the public domain (through a dedication to the public), or on an open access platform.

Armed with the information gained about the appeal of the work over the 35 year period in which the copyright was owned by someone else, Congress provided the author with a way to renegotiate the deal. And that is precisely what Congress intended when it created the termination right.


* Note that the timing of the termination right can vary depending on the circumstances and the date of the contract—see the Authors Alliance/Creative Commons Termination of Transfer tool for more information.

Lydia Pallas Loren is Henry J. Casey Professor of Law at Lewis & Clark Law School in Portland, Oregon. Professor Loren is the author of Renegotiating the Copyright Deal in the Shadow of the ‘Inalienable’ Right to Terminate.

How the Rightsback.org Termination of Transfer Tool Helps Authors

Posted October 12, 2017

The following is a guest post by Luke Ewing, student attorney at the Colorado Law Samuelson-Glushko Technology Law & Policy Clinic. We’d like to thank Luke and his classmates Sean Doran and Andi Wilt, and their supervisor Blake Reid, at Colorado Law; and law students Eric Malmgren, Erica Row, and Julia Wu, and their supervisor Jack Lerner, at UC Irvine Intellectual Property, Arts, and Technology Clinic for their assistance with the development of the Termination of Transfer tool and templates.

Erica Row, Julia Wu, Pamela Samuelson, Mike Wolfe, Eric Malmgren, and Jack Lerner (not pictured: Sean Doran, Luke Ewing, Andi Wilt, and Blake Reid)

Yesterday, Authors Alliance and Creative Commons released the Termination of Transfer tool at rightsback.org. You may be wondering what the tool does and how termination helps authors. Along with many other beta testers, student attorneys at the Colorado Law Samuelson-Glushko Technology Law & Policy Clinic and the UC-Irvine Intellectual Property, Arts, and Technology Clinic helped verify that the tool accurately reflects the state of termination law. We scoured statutes, regulations, and case history to determine what is required to make the termination process go smoothly under a wide range of circumstances. We also tested the tool to ensure that its results accurately reflect the current state of the law. Finally, we drafted a standardized form and written guidance that make the paperwork simple once an author decides to exercise their termination right.

Authors who assigned their copyrights many years ago may feel that their works are being underutilized or misrepresented, or they may want to renegotiate their earlier agreements. Fortunately, Congress devised a mechanism by which authors can take back those rights. This is a critical opportunity for authors who made less-than-advantageous deals early in their careers, saw their works become unavailable when a publisher went bankrupt, or want to release their works into the public domain or under an open access license. But because the window for termination opens decades after that original transfer of rights and requires navigating a particularly difficult and complex area of copyright law, exercising termination rights can be daunting.

Termination windows are determined by three separate subsections of the Copyright Act (§ 203, 304(c), and 304(d)), the format and instructions for notifying the Copyright Office are spelled out in a list of very particular regulations, and each subsection of the Copyright Act yields a different list of regulations. Determining whether the window is open for a copyrighted work, or which subsection applies, depends on a number of variables, including:

  • Was it published?
  • If so, when was it published?
  • When were rights transferred?
  • Did those rights include the right of publication?
  • Has the agreement already been renegotiated?
  • Were there multiple authors involved, and do they all agree to terminating the transfer?
  • Are all the authors still alive?
  • And more.

Every one of these questions is relevant, and every answer leads down different branches of a decision tree that indicates whether, when, and how an author may exercise termination rights rights. Without help, trying to understand these rights can be tedious and discouraging.

The tool makes understanding the process easy.  It knows which questions to ask and what to do with the answers to those questions. Within minutes, the tool helps authors better understand how termination of transfer works. Congress intended for authors to exercise these rights, and Authors Alliance wants to simplify the process by removing as much confusion and uncertainty as possible. If you want to learn more about taking back the rights to your work, or are just curious about the process, you can try out the tool right now. It’s free, simple, and only takes a few minutes.

And if you decide to exercise your termination rights, check out our termination of transfer resource page for notice of termination templates and instructions on how to notify the Copyright Office as well as any relevant parties.

New Resource: Termination of Transfer Templates

Posted October 11, 2017

Earlier today, we announced the launch of our new Termination of Transfer tool, developed with our partners at Creative Commons. The online tool, located at rightsback.org, helps authors understand the eligibility and timing requirements for terminating transfers. To effectuate a termination right, authors need to provide notice to the party whose grant is being terminated and submit a copy of that notice to the U.S. Copyright Office. So to complement the tool, we developed a new resource that includes notice of termination templates and accompanying information.

We’re grateful to law students Sean Doran, Luke Ewing, and Andi Wilt, and their supervisor Blake Reid, at the Colorado Law Samuelson-Glushko Technology Law & Policy Clinic; and law students Eric Malmgren, Erica Row, and Julia Wu, and their supervisor Jack Lerner, at UC Irvine Intellectual Property, Arts, and Technology Clinic for their assistance with the development of these templates.

Check out our new Termination of Transfer resource page for more information about the online tool, the templates, and related news!

20180315-ToT-Templates

Authors Alliance & Creative Commons Launch New Termination of Transfer Tool

Posted

creative commons infographic

Authors Alliance and Creative Commons are pleased to announce the official launch of our jointly-stewarded Termination of Transfer tool, now available at rightsback.org. The tool is designed to help authors navigate the “termination of transfer” provisions of U.S. copyright law.

Authors who enter into publishing, recording, or other types of agreements involving their creative works are routinely asked to sign away their rights for the life of copyright—which generally lasts 70 years after the author dies in the United States. Fortunately, authors do have options if they come to regret these decisions and want to share (or renegotiate the terms of sharing) at a later date. The termination of transfer provisions, when exercised properly, let authors walk away from or renegotiate their copyright transfers. The key feature that makes these rights so powerful is that termination rights can’t be signed away. They apply “notwithstanding any agreement to the contrary.”

Termination of transfer allows creators (or, in some cases, their family members) to regain copyrights to creative works they may have signed away decades ago. Our tool helps them understand if those termination rights exist, and if not, when they may exist in the future. With rights back in hand, authors have many options for getting their works in front of new audiences, from sharing their works with the public using a Creative Commons license to negotiating new agreements with publishers.

Though these termination rights are an extremely powerful boon for authors, exercising them can be daunting. The law is complex and difficult to navigate, requiring attention to detail and careful timing. The termination process is only available within a five-year window, and can only be exercised if notice is provided significantly in advance of the actual termination.

Rightsback.org is the result of a partnership between Authors Alliance and Creative Commons, and draws on the expertise of both organizations to demystify this little-known area of U.S. law. The tool provides basic information about the eligibility and timing of termination rights based on user input, along with suggestions on next steps that authors may wish to take in securing rights.  While this tool is currently U.S.-based only, Creative Commons plans to develop a database of other country laws that enable authors and creators to similarly terminate or reclaim their rights when their agreements are governed by those other laws.

We encourage users to try out the tool and to contact us with any questions or suggestions. We are excited to share this resource with our creative communities, and look forward to your comments!

Authors Alliance and Creative Commons are grateful to the Arcadia Fund, a charitable fund of Lisbet Rausing and Peter Baldwin, for their generous support of the creation of the Termination of Transfer tool. See our full list of personnel and thank-yous at rightsback.org/about.

Termination of Transfer FAQs

What does termination of transfer mean?

Termination of transfer is a way for authors (or their family members) to reclaim rights to works that they previously signed away (after a statutorily specified amount of time). An author’s ability to exercise this option depends on many factors, including how old the work is, when the transfer agreement was signed, and whether the work was ever published.

Why would I want to get my rights back in a work? What can I do with the rights once I have them?

There are number of reasons you may wish to get your rights back in a work. Sometimes, you may be motivated by the work’s lack of performance as currently licensed, such as when your book is no longer being printed or isn’t selling well anymore. Or maybe your work is performing even better than expected and you now want leverage to renegotiate a long-outdated contract. You may even wish to open your work up to more readers through digital distribution or free licensing.

Whatever reason you have for getting your rights back, there are a variety of options available to you once you have them. You may relicense the work to another publisher or to the same publisher under different terms, you may release the work under an open access license, or you may self-publish the work either in a new print or digital edition. Success stories from authors who have received their rights back can be found here.

It is important to remember that terminating a transfer of rights is contract-specific only applies to the rights you initially contracted for. These rights will come back to you, though your publisher may retain certain rights to derivative works, international publications, etc. If you have contracted your rights out to multiple publishers, you will have to execute a termination for each contract.

How does termination work?

Congress has granted authors the right to terminate a transfer of their copyright through three subsections of the Copyright Act (§§ 203, 304(c), and 304(d)). Whether termination is available for a given work is determined according to a long list of factors; however, a work typically must be at least 35 years old to qualify for termination, and notice must be given at least two years in advance before the right is exercised. Works much older than 35 years may still be covered under these provisions, and notice can be given up to ten years before termination so these windows vary greatly. If you think a work may be eligible for termination, we encourage you to go to rightsback.org and use the tool to get a sense of how these windows are calculated. In order to effectively terminate a transfer, the author must first give notice to both the rightsholder and the U.S. Copyright Office. Check out Authors Alliance’s guidance and templates for submitting a notice of termination.

If your work is not old enough or does not otherwise qualify for termination, seeking a rights reversion instead may be your best option for getting your rights back.

How is termination different from reversion?

Reversion is a process through which an author can get back some or all of the rights she has signed away to a publisher, either through a contractual provision that permits her to regain rights in her book when certain conditions are met, or through voluntary negotiations if her contract does not have a reversion clause. To learn more about reversion, visit our Rights Reversion Portal.

The main difference between termination of transfer and reversion is that termination of transfer is a mandatory right granted by the U.S. Copyright Act, whereas reversion is a contractual commitment or a voluntary act by your publisher. Even if there is a clause in your contract that prohibits termination of transfer, you may still exercise this option. Reversion, on the other hand, is not always guaranteed.

Reversion can also occur at any time, whereas a work must be at least 35 years old in order for termination of transfers to apply. Thus, if your work is relatively new, reversion may be your best option for regaining rights in your work.

How can I determine if termination is an option for a given work?

Authors Alliance and Creative Commons have collaborated on a free and easy Termination of Transfer Tool, located at righstback.org, which educates users about termination of transfer and roughly estimates whether and when a work may be eligible for termination based on hypothetical scenarios. This tool is not legal advice, but may be helpful in an author’s initial information gathering before deciding whether termination is an option they are interested in pursuing. If you are not sure whether termination of transfer provisions apply to your work, you may want to seek legal advice from a licensed attorney.

What role does Authors Alliance play in this? Can Authors Alliance help me get my rights back?

Authors Alliance collaborated with Creative Commons to create the Termination of Transfer Tool which can be a useful resource for authors researching termination of transfer for the first time. Authors Alliance also provides guidance and templates for submitting a notice of termination. While Authors Alliance cannot represent any individual authors seeking termination rights, we will continue to educate authors about their options regarding their copyrights. Our mission is to assist authors who want to reach wider audiences by disseminating their work more broadly, and termination of transfer is just one of the tools in an author’s toolbox to achieve that goal.

Where can I learn more?

More in-depth resources about termination of transfer can be found at Rightsback.org, including detailed information about how to calculate notice windows, what types of contracts are covered by this statute, who can terminate, and where you can gather the information needed to use the tool. If you have any additional questions about termination, you can send them to info@rightsback.org.

For more information about what to do once you have successfully gained your rights back, we encourage you to visit our Open Access Portal or our Rights Reversion Portal, which discuss how to use your copyright effectively to maximize your readership.

Terminating Transfers: An Inalienable Right Under Threat

Posted July 6, 2017

Mike Wolfe headshotThe following is a guest post by Mike Wolfe, Scholarly Communications Officer at UC Davis, and the former Executive Director of Authors Alliance.

Sometimes, being an author means making bad deals. Authors are routinely asked to sign away their rights for the life of copyright—which lasts 70 years after death in the U.S.—and the promise of publication, or an advance, or just being done leads them to say, “yes.”

Authors always have options when they come to regret these decisions, but in the U.S. they often hold a trump card: Termination of transfers. These legal provisions, when exercised properly, let authors walk away from their copyright transfers. The linchpin that makes the whole thing work, and the feature that makes these rights so powerful, is that termination rights can’t be signed away. They work “notwithstanding any agreement to the contrary.” At least, that’s what the law says in the United States.

But termination rights are such a powerful tool for authors that they are constantly under threat. Recently a very public series of high-profile (and star-studded) lawsuits has helped to bring this into focus. First, a troubling court decision in the United Kingdom late last year created the potential to undermine the U.S. termination rights of authors worldwide, and more recently a lawsuit initiated by Sir Paul McCartney in the U.S. stepped in with the goal of protecting them.

Duran Duran, the British pop group behind “Hungry Like the Wolf” and “Rio,” wrote their top hits while under contract to assign the copyrights—a contract signed as teenagers at the very beginning of their careers. Decades later, on the hunt after valuable royalties, the band exercised their U.S. termination rights in order to regain copyright and benefit from the success they realized “across the Rio Grande” from Mexico. It’s hard to imagine that, at the time, they had any inkling of being sued in the United Kingdom for breach of contract.

But the contract Duran Duran signed was with a British company, and was subject to British law. With Duran Duran’s terminations processing in the United States, the rightsholder brought Duran Duran into court in the U.K. for violating this agreement. In a highly questionable decision, the British court hearing the matter found that Duran Duran’s proper exercise of their rights under U.S. law was nevertheless a breach of their contractual commitments. (The band was granted leave to appeal the decision in February.)

While this one decision isn’t the last word on whether British law will ultimately respect U.S. termination rights, it does set a dangerous precedent. As high-profile terminations become more common, others will try to challenge them in local courts not just in the U.K., but all around the world. And the U.K. is a particularly important leader, given its large international role in many cultural fields, and particularly in international publishing. Authors from around the world, including authors in the U.S., publish with presses based in the U.K., signing agreements subject to U.K. law.

Enter Sir Paul McCartney, who has his own set of British music publishing contracts that might have been turned against his terminations of transfers. (McCartney would have been eligible to exercise his termination rights in October 2018.) Far from letting it be, I’ve got a feeling that McCartney drove his car down to the courthouse eight days a week, dead set on fixing that hole. His recent lawsuit against Sony/ATV, filed in the United States, sought a confirmation that he may exercise his termination rights without breaching his contracts. Late last week, however, the case settled under undisclosed terms, leaving the status of Sir Paul’s termination claims unclear.

The ramifications here are important. Notably, Duran Duran did not have expert evidence of how the U.S. termination rights override contracts to the contrary. If McCartney had gone to trial and won, he would have had more than just expert evidence; he would have had a judicial opinion in his favor. These cases might not be the last word on the subject, but pursuing  termination of transfers is one way put a halt to the disturbing trend of chipping away at authors’ rights. U.S. copyright law gives all authors, regardless of nationality, a very powerful right and authors everywhere have a stake in seeing it preserved.


Authors Alliance and Creative Commons are finalizing rightsback.org, an online tool designed to assist authors in identifying their eligibility for termination of transfer rights. The tool is currently in beta, and we expect to officially launch rightsback.org this fall. We will keep our readers updated on progress. In the meantime, we encourage authors to test the tool—it’s a powerful way to learn more about termination rights.

Rightsback.org Termination of Transfer Tool

Posted October 31, 2016

In October of 2016, we launched a new online tool at rightsback.org, made with our allies at Creative Commons and designed to help authors navigate the “termination of transfer” provisions of U.S. copyright law.

Complementing our efforts around rights reversions, the area of the law our tool helps clarify allows authors (or, in some cases, their family members) to regain rights to creative works signed away many years ago. Though these termination rights are an extremely powerful boon for authors and creators, exercising them can be daunting. The law is complex and difficult to navigate, requiring attention to detail and careful timing.

The tool provides basic information about how the eligibility and timing of a right based on user input, along with suggestions on next steps that a creator may wish to take in securing rights. To learn more, view our demo video, featuring Professor Sidonie Smith of the University of Michigan that goes through the tool step by step.

As always, you can contact us directly with any questions or suggestions. We are excited to share this  resource with you, and look forward to your comments.

This Open Access Week, learn about regaining rights with our new tool

Posted October 25, 2016

openaccess

Just in time for Open Access Week, we are pleased to announce the launch of a brand-new online tool made with our allies at Creative Commons and designed to help authors navigate the “termination of transfer” provisions of U.S. copyright law. The theme of this year’s Open Access Week is “Open in Action” and our new tool helps creators take actionable steps to regain rights and make their work more accessible.

Complementing our efforts around rights reversions, the area of the law our tool helps clarify allows authors (or, in some cases, their family members) to regain rights to creative works signed away many years ago. Though these termination rights are an extremely powerful boon for authors and creators, exercising them can be daunting. The law is complex and difficult to navigate, requiring attention to detail and careful timing.

That is why we’ve partnered with Creative Commons to build an online tool to help clarify the law’s terms and make its intricate timing requirements easier to follow. Through a series of prompts, users enter information about a work, and the tool provides basic information about how the eligibility and timing of a right, along with suggestions on next steps that a creator may wish to take in securing rights.

Want to see it in action? Check out the demo video we’ve made, featuring Professor Sidonie Smith of the University of Michigan (and a member of our advisory board) that goes through the tool step by step.

Want to try it out? The new Termination of Transfer tool is currently in beta, and still needs your review and feedback. We encourage authors and creators to give it a try, and hope you’ll share your feedback via the public comments page. And, as always, you can contact us directly with any questions or suggestions. We are excited to share this new resource with you, and look forward to your comments.